PETERS & KENNEDY - [2010] FamCAFC 117

Family Court Of Australia

PETERS & KENNEDY

[2010] FamCAFC 117

FAMILY LAW - PRACTICE AND PROCEDURE – Procedural fairness – Whether the Federal Magistrate denied the applicant procedural fairness – Where there is a complaint of “trial by surprise” – Where the Federal Magistrate failed to comply with the guidelines in relation to unrepresented litigants even though the litigant was a lawyer by profession – Where the Federal Magistrate conducted the hearing in a manner that was not authorised by the Act or the Rules and this caused a significant procedural unfairness to the Father – Where the Federal Magistrate failed to properly consider the material in the submissions of the Father when he applied the approach suggested in Rice v Asplund – Where the Federal Magistrate failed to provide adequate reasons

FAMILY LAW - REDETERMINATION – Appeal allowed – That the matter be remitted for rehearing

FAMILY LAW - COSTS – Reserved

Jacobs & Vale (2008) FMCAfam 641
Johnson and Johnson (1997) FLC 92-764
Re F: Litigants in person guidelines (2001) FLC 93-072
Rice v Asplund (1979) FLC 90-725
S v R (1999) FLC 92-834
Sheen & Paulo (2007) FamCA 1175
Stead v State Government Insurance Commission (1986) 161 CLR 141
The Queen v Watson; Ex parte Armstrong (1976) 136 CLR 248
Vivid Entertainment LLC v Digital Sinema Australia Pty Ltd [2007] FMCA 157

Family Law Act 1975 (Cth)
Federal Magistrates Act1999 (Cth)
Family Law Rules 2004
Federal Magistrates Court Rules 2001

APPELLANT:

MR PETERS

RESPONDENT:

MS KENNEDY

FILE NUMBER:

MLC

1806

2009

APPEAL NUMBER:

2009

DATE DELIVERED:

23 June 2010

PLACE DELIVERED:

Sydney

PLACE HEARD:

Melbourne

JUDGMENT OF:

O’Ryan J

HEARING DATE:

26 August 2009

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

7 April 2009

LOWER COURT MNC:

[2009] FMCAfam 460

Representation

APPELLANT IN PERSON:

Mr Peters in Person

COUNSEL FOR THE RESPONDENT:

Mr Ramsey

SOLICITOR FOR THE RESPONDENT:

Wightons Lawyers

Orders

The appeal be allowed.
The application filed on 3 March 2009 on behalf of the Appellant be remitted to the Federal Magistrates Court for redetermination by a Federal Magistrate other than Federal Magistrate Turner.
The response filed on 7 April 2009 on behalf of the Respondent be remitted to the Federal Magistrates Court for redetermination by a Federal Magistrate other than Federal Magistrate Turner.
Each party be at liberty to make an application by way of written submissions in respect of costs incurred in relation to the appeal by the Appellant by filing such submissions at the Southern Region Appeal Registry of the Family Court of Australia and serving them on the other party within 28 days of the date hereof.
Each party have a further 14 days in which to make written submissions in answer thereto by filing such submissions at the Southern Region Appeal Registry of the Family Court of Australia and serving them on the other party.
Each party be at liberty to reply to an answer by way of written submissions by filing such…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: PETERS & KENNEDY [2010] FamCAFC 117
Case: [2010] FamCAFC 117
Decision Date: 23 June 2010

CaseChat Overview and Summary

The case before the court was an appeal by the father, who was represented by counsel, against a decision of the Federal Magistrates Court in relation to a family law matter. The father contested the decision on the basis that the Federal Magistrate had denied him procedural fairness by failing to follow the guidelines for unrepresented litigants, conducting the hearing in an unauthorised manner, and inadequately considering his submissions. The mother, who was also represented by counsel, defended the Federal Magistrate's decision, arguing that the father's complaints were without merit.

The primary legal issues before the court were whether the Federal Magistrate had indeed denied the father procedural fairness and whether the Federal Magistrate had acted in a manner that was not authorised by the Act or the Rules. Additionally, the court needed to determine if the Federal Magistrate had properly considered the father's submissions when applying the approach suggested in Rice v Asplund and whether the Federal Magistrate had provided adequate reasons for the decision.

The court found that the Federal Magistrate had indeed failed to adhere to the procedural fairness requirements, particularly by not following the guidelines intended for unrepresented litigants, despite the father being a lawyer by profession. The court also noted that the manner in which the Federal Magistrate conducted the hearing was not authorised by the Act or the Rules, leading to significant procedural unfairness. Furthermore, the court observed that the Federal Magistrate had not properly considered the material in the father's submissions when applying the Rice v Asplund approach, and had failed to provide adequate reasons for the decision. Consequently, the appeal was allowed, and the matter was remitted for rehearing by a different Federal Magistrate.

The court further ordered that the parties could apply for costs incurred in relation to the appeal, with specific timelines and procedures outlined for these applications and responses. Each party was granted the opportunity to file written submissions on costs and reply to the opposing party's submissions, with strict deadlines for serving these documents on each other. The court also mandated that the date of service be endorsed on the cover sheet of any submissions filed in accordance with these orders.

Orders

Orders of the court

The appeal be allowed.

The application filed on 3 March 2009 on behalf of the Appellant be remitted to the Federal Magistrates Court for redetermination by a Federal Magistrate other than Federal Magistrate Turner.

The response filed on 7 April 2009 on behalf of the Respondent be remitted to the Federal Magistrates Court for redetermination by a Federal Magistrate other than Federal Magistrate Turner.

Each party be at liberty to make an application by way of written submissions in respect of costs incurred in relation to the appeal by the Appellant by filing such submissions at the Southern Region Appeal Registry of the Family Court of Australia and serving them on the other party within 28 days of the date hereof.

Each party have a further 14 days in which to make written submissions in answer thereto by filing such submissions at the Southern Region Appeal Registry of the Family Court of Australia and serving them on the other party.

Each party be at liberty to reply to an answer by way of written submissions by filing such reply at the Southern Region Appeal Registry of the Family Court of Australia and serving it on the other party within a further seven days.

Each party endorse on the cover sheet of any submissions filed pursuant to orders 4, 5 and 6 the date upon which a copy of that submission was served on the other party.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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